Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2271 (ALL)

Chandra Shekhar v. State of U. P.

2014-07-31

BHARAT BHUSHAN

body2014
JUDGMENT Bharat Bhushan,J. 1. This criminal appeal is directed against the judgment and order dated 12.5.2006 passed by Additional Sessions Judge (F.T.C.-I) Court No. 6, Banda in Special Case No. 36 of 2005 (State versus Chandra Shekhar Shivahare) arising out of Case Crime No. 10 of 2005 under section 22 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (in short N.D.P.S. Act) Police Station Jaspura, District Banda whereby appellant was convicted and sentenced to rigorous imprisonment of ten years and a fine of Rs. One lac with default stipulation. 2. The prosecution projected a case before the trial court saying that on 26.2.2005 Sub-Inspector Sanjay Kumar Singh (PW-1), Sub Inspector R.K.Upadhayay (PW-2) were patrolling on routine police duty from village Gaderiya to town Jaspura on the instructions issued by the Superintendent of Police. Suddenly one person was seen walking on foot on Koilaha culvert carrying a black bag on his shoulder towards village Gaderiya. They hailed that person but instead of stopping on the request of the Police party, he initially hesitated and then suddenly turned back and started running back towards Jaspura. Police personnel apprehended that person and bag was taken off from his shoulder. Bag was then opened wherein another cloth bag was found in which 5 plastic pouches containing brown powder was found. Each plastic pouch was found to be of 50 grams each. Similarly, another white plastic pouch containing 10 small plastic sealed packets containing 2.5 grams brown powder each were recovered. Another white small bag containing 12 small paper packets (Pudiya) were also recovered which were also opened and on query being made, appellant herein stated to have informed the Police party that entire material was smack. Similarly, cash amount of Rs. 1,60,250-00 was also found in the same bag. On interrogation, the appellant admitted possession of heroin and also admitted that the cash amount had been realised after selling that illicit drug. 3. On this information, the police party informed the appellant that if he so desired, search could be conducted in presence of a Gazetted Officer or a Magistrate, whereupon the appellant is said to have expressed his consent to be searched by police personnel on the ground that recovery had already been made, therefore, there is no need of calling any body else. 4. 4. Police personnel called nearby citizens working in the fields and passerbys, to act as witnesses, but all of them declined on the ground of avoiding enmity. 5. Meanwhile, information was sent to superior officers and on this information, Circle Officer of Police Ram Gopal Rajak (PW-3) arrived on the spot. Formal proceedings were conducted and sample of one sealed packet of 50 grams of drug was sent to forensic laboratory and other recovered 4 packets of 50 grams each and 10 small packets of 2.5 grams each and another 12 Pudiya were appropriately sealed. Sample seals were taken. A copy of the recovery memo was also given to appellant which was stated to be torn and thrown away in the air by him. 6. Thereafter, forensic laboratory confirmed that recovered material, in fact, was heroin, therefore, the accused was charged and tried for possession of heroin. 7. As many as six witnesses, namely, Sub-Inspector Sanjay Kumar Singh (PW-1), Sub Inspector R.K.Upadhayay (PW-2), Circle Officer Ram Gopal Rajak (PW-3), Head Constable Yuvraj Singh (PW-4), S.O. Surendra Singh (PW-5) and Arjun Singh (PW-6) were examined by the prosecution. In defence, two witnesses, Kailash Prakash (DW-1) and Nand Kishore (DW-2) were produced on behalf of appellant. The statement of appellant was recorded under section 313 Cr.P.C. wherein he denied all the allegations. Court convicted and sentenced the appellant, as mentioned here-in-above. 8. Heard Sri I.K.Chaturvedi, learned counsel for appellant and learned AGA for the State. 9. Learned counsel for the appellant has argued that mandatory provisions of section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short as the N.D.P.S. Act) have not been followed at the time arrest and recovery of alleged substance. He claimed that as per testimony of PW-1 Sanjay Kumar Singh and PW-2 S.I. R..K.Upadhay, personal search of appellant was conducted and yet provisions of section-50 of the N.D.P.S.Act were not complied with. Learned counsel has also relied upon the judgment of Apex Court in State of Rajasthan versus Parmanand and another 2014 STPL (Web) 144, wherein it has been held that even if the personal search of accused does not result in recovery of illicit drug, compliance of the provisions of section-50 of the N.D.P.S. Act is necessary. Learned counsel has also relied upon the judgment of Apex Court in State of Rajasthan versus Parmanand and another 2014 STPL (Web) 144, wherein it has been held that even if the personal search of accused does not result in recovery of illicit drug, compliance of the provisions of section-50 of the N.D.P.S. Act is necessary. It was held that if illicit drug is first recovered from the bag carrying by the accused and thereafter personal search is taken and nothing recovers from personal search, even then, it is incumbent upon the authority conducting search to comply with the provisions of Section-50 of the N.D.P.S.Act. The trial court took the view that there was no occasion to comply with the provisions of section-50 of the N.D.P.S.Act for the simple reason that heroin was recovered from shoulder bag of the appellant and that search had been conducted without any prior information. It was routine police exercise which suddenly resulted in recovery of the illicit drug. 10. It is pertinent to point out that Apex Court in the case of State of Punjab vesus Balbir Singh (1994) 3 S.C.C. 299 has held that if a police officer stumbles upon recovery of narcotic drug and psychotropic substance during normal course of investigation into the offence or suspected offence, then the question of invoking provisions of section-50 of the N.D.P.S.Act would not arise. It is evident that Police officer might have undertaken a search operation in the course of discharge of his duty and if during such operations, he recovers any illicit drug, then it would be impossible to invoke the provisions of section 50 of the N.D.P.S.Act. The Apex Court in Balbir Singh case (Supra) has held thus : - "25. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows : (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then form that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act." 11. Now coming back to the facts of the present case, it is evident that Police personnel were busy in normal routine police works; their superior authorities had of course directed them to control the menace of drug trafficking but still they did not have any specific information about any particular person. But, for the suspicious conduct of the appellant, he might not have been apprehended. The story is very simple. The police personnel saw him then hailed him. He hesitated and tried to run away, where upon police personnel apprehended him. Ext. Ka-1 recovery memo clearly shows that the appellant was first apprehended and his shoulder bag was taken off and in search thereof, illicit heroin was found in several small and big packets and thereafter, he was interrogated. He was of course given an option for search by a Gazetted Officer or a Magistrate, but it was superfluous offer simply because search had already been conducted and the appellant also declined to call any superior officer for the same reason. There was no need to call any other officer as recovery had already been made. This Court has examined recovery memo, testimonies of S.I. Sanjay Kumar Singh (PW-1), and S.I. R.K.Upadhyay (PW-2), the then Circle Officer, Sadar, minutely and could not find any averment or statement to the effect that separate personal search of appellant was conducted before and after recovery of illicit drug. The prosecution evidence and story is very simple that the appellant was carrying a black bag on his shoulder, which was taken off without any prior knowledge of illicit drug and search of this bag resulted in recovery of heroin. Thereafter, there is absolutely no mention of any personal search conducted by the police personnel. It is, therefore, apparent that the provisions of section 50 of the N.D.P.S.Act would not be applicable in the instant case and the mandate of 'Parmanand case' (Supra) would not help the appellant either. 12. Thereafter, there is absolutely no mention of any personal search conducted by the police personnel. It is, therefore, apparent that the provisions of section 50 of the N.D.P.S.Act would not be applicable in the instant case and the mandate of 'Parmanand case' (Supra) would not help the appellant either. 12. Learned counsel for the appellant has drawn the attention of this Court towards the last line of examination-in-chief of PW-3 Circle Officer Ram Gopal Rajak, wherein he is reported to have said that the recovery was made before him. Learned counsel for the appellant submitted that it means the first information was communicated to the superior officers and thereafter search was made in their presence. I am afraid this argument is misplaced for the simple reason that specific line of testimony, which the learned counsel is referring merely says that paper work regarding recovery of contraband was conducted in his presence. It does not say that recovery was made in presence of the Circle Officer Ram Gopal Rajak. Learned counsel for appellant has also submitted that alleged seizure had taken place at a reasonably crowded place, still the prosecution could not adduce the evidence of any independent witness. He has submitted that in absence of corroboration from public witnesses, the appellant should not be convicted merely on the basis of evidence rendered by Police officials. 13. It is true that prosecution witnesses have conceded that there were some people working in nearby fields and they have also admitted the presence of passerbys but the recovery memo Ext. Ka-1 and testimonies of PW-1 Sanjay Kumar Singh and PW-2 R.K.Upadhayay have revealed that Police personnel tried to rope in the independent witnesses but the people working in nearby fields and passerbys refused to help the police personnel. It has come in the evidence that passerbys refused to become witnesses because of possibility of enmity. In any case, there is no mandatory rule that non-examination of public witnesses, in all circumstances, would make the prosecution story suspicious. There is no legal rule that testimony of police personnel can not be believed. In fact, every witness including the police personnel are considered trustworthy unless contrary is proved. There is absolutely no law, which says that police personnel should be treated with distrust unless cross-examination or some other material demonstrate that testimonies rendered by the police personnel are unreliable or untrustworthy. In fact, every witness including the police personnel are considered trustworthy unless contrary is proved. There is absolutely no law, which says that police personnel should be treated with distrust unless cross-examination or some other material demonstrate that testimonies rendered by the police personnel are unreliable or untrustworthy. This Court has carefully examined the testimony of the police witnesses in this case. The evidence rendered by the police personnel is satisfactory and worthy of credence. 14. Learned counsel for appellant has further pointed out that the trial court framed charge against the appellant under section 22 of the N.D.P.S.Act, which provides punishment for possession of psychotropic substance while prosecution case is that narcotic drug (heroin) was recovered from the appellant which is punishable under section 21 of the N.D.P.S.Act. 15. I have carefully perused the charge framed by the trial court on 5.7.2005. It provides correct date, time and place of recovery. It specifically says that the accused was being charged for possession of 300 grams of smack apart from possession of money recovered from the sale of illicit drug. A careful perusal of charge reveals that every contents of charge is based upon facts enshrined in the recovery memo and FIR. Ext. Ka-1 Recovery memo specifically mentions that accused had committed offence under section 8/21 of N.D.P.S.Act. Copy of the recovery memo was given to the accused. Recovery memo had been signed and dated by the appellant Chandra Shekhar Shivahare, which are clearly visible from the recovery memo. Recovery memo and charge are signed in the same handwriting. Section 215 Cr.P.C. provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Similarly, section 464 Cr.P.C. provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. It is plain and clear from what is stated in Section 215 Cr.P.C. that when there is a charge and there is either error and omission in the charge itself or both, and whatever the character of the error or omission, whether it is serious or trivial, it is not to be regarded as important unless two conditions are fulfilled both of which are the result of facts: (i) The accused has 'infact' been mislead by it, and (ii) the omission or error or both have occasioned a failure or justice. A man must know for what offence he is being tried for and he must be told in clear and unambiguous terms and it must all be explained to him so that he clearly understands the accusations. Only in such cases, question of curing the omission, irregularity or error will arise. If in substance, though not in form, the accused was made to understand the real charge and no prejudice resulted, then no error omission or irregularity in the charge will be material. Mere defect in framing of the charge would not by itself vitiate the trial unless prejudice to the accused is established. 16. There is no doubt that the trial court has not framed the charges properly but that by itself will not vitiate the trial. All facts necessary for defending appellants were enshrined in the charge. Not only that, all the testimonies, recovery memo and FIR referred to the recovery of smack/heroin and cash money only. The questions were put to the appellant under section 313 Cr.P.C. also in that regard and these questions pertains to the recovery of illicit drug for which he has been punished. In fact, learned counsel for the appellant has not established or argued the question of prejudice, therefore, mistake in describing the section, on which there is interpolation, in any case, would not vitiate the trial. 17. Learned counsel for the appellant has drawn the attention of this Court towards the operative part of the judgment wherein again learned Judge has referred section 22 instead of section 21 of the N.D.P.S.Act. He claims that in any case, learned Judge did not apply his mind. 17. Learned counsel for the appellant has drawn the attention of this Court towards the operative part of the judgment wherein again learned Judge has referred section 22 instead of section 21 of the N.D.P.S.Act. He claims that in any case, learned Judge did not apply his mind. It is true that operative portion of the judgment does refer section 22 instead of section 21 of the N.D.P.S.Act but it is apparent that it is an inadvertent clerical mistake, which is evident from the fact that on page one right at the start heading of the judgment has mentioned section 8/21 N.D.P.S.Act. Similarly, the opening lines of the judgment also refers that the accused has been tried under section 8/21 N.D.P.S.Act. Inadvertent clerical mistake in the operative paragraph of the judgment is curable in view of section 465 Cr.P.C. which provides that no finding or sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, 'judgment' or other proceedings before or during trial or in any inquiry or other proceedings under the Criminal Procedure Code unless in the opinion of the court, a failure of justice has in fact been occasioned thereby. 18. As stated earlier, reference of Section-22 of the N.D.P.S.Act in last paragraph of the impugned judgment is an inadvertent typographical and clerical error which does not vitiate the trial of appellant. 19. Learned counsel for the appellant has further argued that provisions of sections-55 and 57 of the N.D.P.S.Act have not been followed subsequent to the recovery. I am afraid that evidence on record reveals that police personnel did try to comply with the provisions of Sections 55 and 57 of the N.D.P.S.Act. These provisions in any case are not mandatory. In case of non compliance of these provisions, it has to be seen whether any prejudice has been caused to the accused or whether such a failure has bearing on arrest and seizure as well as merits of the case. No such prejudice or adverse effect has been shown by the learned counsel for the appellant. Documents, samples and seals are all placed on record. The evidence reveals that as soon as the contraband was seized, the information was sent to the superior officers on R.T. Set. No such prejudice or adverse effect has been shown by the learned counsel for the appellant. Documents, samples and seals are all placed on record. The evidence reveals that as soon as the contraband was seized, the information was sent to the superior officers on R.T. Set. Circle Officer Ram Gopal Rajak ( P.W. 3) has testified that he was informed by the Superintendent of Police about the recovery and he was asked by him to rush towards the spot and he actually arrived at the spot and paper work was executed in his presence. It is true that no other documentary evidence has been placed on record for communicating the information on R.T. set but testimony of Circle Officer Ram Gopal Rajak (PW-3) on oath is sufficient to prove that information regarding arrest of accused and recovery of the contraband was indeed communicated to the superior officers instantly. 20. Learned counsel for the appellant has also argued a very important point. He has submitted that there is no evidence on record that the recovered items were weighed on the spot. There is no evidence on record to show that weight of the recovered items was ascertained even subsequently. Inevitable question is how and in what manner, it was determined that commercial quantity was recovered from the appellant. A careful perusal of evidence and other material on record reveal that at least, no evidence was produced to establish the ascertainment of weight of the recovered item. Therefore, it can not be said that commercial quantity of heroine/smack was recovered from the appellant. Five packets of 50 grams each and 10 packets of 2.5 grams each have been mentioned in the recovery memo but weight of 12 other Pudiya has not been mentioned in the recovery memo. It is, therefore, apparent that it can not be said that only 300 grams of heroin/smack was recovered from the appellant. The report of the Public Analyst reveals that 50 grams of smack/heroin was received in the forensic laboratory for chemical examination, meaning thereby at least 50 grams of smack/heroin was recovered from the appellant. But it can not be said that quantity of 250 grams or above was also recovered from the appellant. The report of the Public Analyst reveals that 50 grams of smack/heroin was received in the forensic laboratory for chemical examination, meaning thereby at least 50 grams of smack/heroin was recovered from the appellant. But it can not be said that quantity of 250 grams or above was also recovered from the appellant. In addition to that, another flaw pointed out by the learned counsel for the appellant is that the alleged contraband was recovered in 5 packets of 50 grams each, 10 packets of 2.5 grams each and 12 small packets (Pudiya) of contraband, but sample was not extracted from each and every packets. Out of 5 packets of 50 grams each, one packet was sent to Public Analyst for chemical examination and remaining other packets were kept at the Police Station. It is, therefore, evident that only one packet was examined by forensic laboratory and its report pertains to only one packet containing 50 grams of illicit drug. It is evident that forensic laboratory was never asked to analyse and examine the remaining packets of contraband. In absence of any report of remaining packets from forensic laboratory from which no sample was extracted, it can not be concluded that other packets also contained illicit drug. In fact, it was incumbent upon police personnel to extract sample from each and every packet for chemical analysis but it was not done. Therefore, argument of learned counsel for the appellant that there is absolutely no evidence that remaining 4 packets of 50 grams, 10 packets of 2.5grams each and another 12 pudiya of unknown weight were all illicit drug can not be ignored because remaining packets/pudiya were never tested or sent for chemical examination. I am afraid argument of learned counsel for the appellant is proper and justified. Therefore, in essence, only 50 grams of smack/heroine was recovered from the appellant. 20. The Act contemplates that 250 grams of Heroine will fall within the definition of commercial quantity and 5 grams will fall in small quantity. Therefore, 50 grams of Heroine obviously will fall below the commercial quantity but greater than small quantity for which punishment expendable to ten years and a fine of up to Rs. One lac is provided. 21. Considering all the facts and circumstances of the case, the appeal is partly allowed. Appellant has already spent almost nine years in jail. Therefore, 50 grams of Heroine obviously will fall below the commercial quantity but greater than small quantity for which punishment expendable to ten years and a fine of up to Rs. One lac is provided. 21. Considering all the facts and circumstances of the case, the appeal is partly allowed. Appellant has already spent almost nine years in jail. The conviction of the appellant is upheld. He is sentenced to imprisonment for the period already undergone in this case with fine of Rs. 5,000/-, in default of which, he will have to undergo simple imprisonment for 15 days. 22. Office is directed to certify the copy of this judgment to the concerned court within 15 days. Record of trial court should also be sent back within the same period.